IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 2000 Session

ROGER HARRIS v. STATE OFTENNESSEE

 Appeal from the Criminal Court for Unicoi County

No. 4280 Lynn W. Brown, Trial Judge

No. E1999-02056-CCA-R3-PC - Decided July 28, 2000

The petitioner, convicted of first degree murder and reckless endangerment, filed a pro se petition

for post-conviction relief in March 1995. The petition was amended several times, first by the

petitioner, then by the public defender, and ultimately by private counsel. The trial court summarily

dismissed the petition by order because it was not “verified by any oath or affirmation.” We reverse

and remand, holding that the original petition was filed under a statute that did not require

verification by oath or affirmation and, in the alternative, that the affirmation executed by the private

counsel is sufficient under the current law.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and

Remanded

JOHN EVERETT WILLIAMS,J., delivered the opinion of the court, in which THOMAS T.WOODALL and

ALAN E. GLENN, JJ., joined.

Kenneth J. Irvine, Jr., Knoxville, Tennessee, for the appellant, Roger Harris.

Michael E. Moore, Solicitor General, R. Stephen Jobe, Assistant Attorney General, Joe C. Crumley,

Jr., District Attorney General, and Kenneth Carson Baldwin, Assistant District Attorney, for the

appellee, State of Tennessee.

OPINION

Introduction

In June 1991, the petitioner, Roger Harris, was convicted by a Unicoi County jury of first

degree murder and reckless endangerment. The petitioner was sentenced to life imprisonment for

the murder and to two years incarceration for the reckless endangerment, and a panel of this Court

affirmed those convictions and sentences. See Roger Dale Harris, No. 03C01-9201-CR-00019

(Tenn. Crim. App. filed July 23, 1992, in Knoxville). The petitioner’s subsequent petition for postconviction relief was dismissed when the trial court concluded that it was not “verified by any oath

or affirmation” as required by statute, see Tenn. Code Ann. § 40-30-204(e), and from that dismissal
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The trial court originally refused to appoint the private counsel until the petitioner’s family, who had secured

that counsel, paid $500 to the public defender’s office for approximately twenty-five hours of services rendered. A panel

of this Court re versed and remande d. See Roger H arris v. State, No. 03C01-9712 -CR-00516 (Tenn. Crim. App. filed

Jan. 28, 1999, at Knoxville).

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the petitioner appeals. The state agrees that the verification is not necessary in the instant case and

further agrees that remand to the trial court for further proceedings is appropriate. We remand.

Background

In March 1995, the petitioner timely filed a pro se petition for post-conviction relief and

amended that petition in May 1995. The trial court subsequently appointed an attorney from the

public defender’s office as counsel, and counsel amended the petition. In September 1997, the

petitioner’s family secured private representation for the petitioner,1 and that counsel again amended

the petition. The petition and amendments assert that the petitioner received ineffective assistance

of counsel at trial and appellate level, that the original indictment was invalid, and that jury

instructions were erroneous. The trial court entered an order denying the petition because it was not

“verified by oath or affirmation.”

The state agrees with the petitioner’s first assertion, that the trial court erroneously dismissed

the amended petition because it was not verified as required by the current statute. The state further

agrees that remand to the trial court is appropriate. In the alternative, the petitioner asserts that this

appeal presents three questions of first impression: Does the cited statute apply only to pro se

petitions or also to petitions drafted and signed by counsel; would oath or affirmation satisfy the

statutory requirements and; assuming such oath or affirmation is always required, what remedy does

its absence invoke?

Analysis 

Under Tennessee Code Annotated, effective inMay1995, “[t]he petition [for post-conviction

relief] and any amended petition shall be verified under oath.” Tenn. Code Ann. § 40-30-204(e).

However, the defendant’s original pro se petition was filed in March 1995, before that statute

became effective, and the law at that time did not require a verification by oath. Panels of this Court,

in decisions cited by the parties, hold that law prior to May 1995 establishes not only the

requirements for petitions filed before that date but also for amendments, filed after that date, for

those petitions. See Wright v. State, 987 S.W.2d 26, 28-29 (Tenn. 1999); Joe Nathan Person v.

State of Tennessee, No. 02C01-9806-CC-00175, Tenn. Crim. App. filed Mar. 15, 1999, at Jackson);

Gaile K. Owens v. State, No. 02C01-9806-CR-00182 (Tenn. Crim. App. filed Sept. 1, 1999, at

Jackson); Sylvester Smith v. State, No. 02C01-9801-CR-00018 (Tenn. Crim. App. filed Dec. 28,

1998, at Jackson); Otha Bomar v. State, 01C01-9607-CR-00325 (Tenn. Crim. App. filed Oct. 30,

1997, at Nashville); Terry D. Barber v. State, No. 02C01-9508-CC-00210 (Tenn. Crim. App. filed

June 28, 1996, at Jackson). 
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These cases do not specifically address this “relating back” in the context of the oath

requirement. We conclude, however, that the cited precedent establishes the general principle that

amendments relate back to an original petition, filed before May 1995, and therefore that the oath

requirement for these amendments, under the prior statute, are unnecessary. See also Tenn. Code

Ann. § 40-30-201, Compilers’ Notes, (The current act “shall govern all petitions for post-conviction

relief filed after May 10, 1995, and any motions filed after that date to reopen petitions for postconviction relief which were concluded prior to May 10, 1995.”). 

Although our holding disposes of the petitioner’s alternative arguments, we briefly address

those issues. See Jacobs v. State, 450 S.W.2d 581 (Tenn. 1970). First, under the plain language of

the statute, we believe that the requirements apply to all petitions, not only those filed pro se. See,

e.g., John William Evans v. State, No. 03C01-9601-CR-00018 (Tenn. Crim. App., filed Aug. 13,

1997, at Knoxville) (The trial court properly dismissed, without a hearing, a pro se petition that was

amended by appointed counsel when the petitioner declined an opportunity to verify the amendment

under oath.). Regarding the nature of the required affirmation, the current counsel did sign and

certify that he had investigated all of the facts to determine that they were true and correct to the best

of his knowledge and belief. We conclude that such affirmation satisfies the verification

requirement. Finally, the petitioner queries what is the proper remedy should an oath or affirmation

be absent or insufficient. Outright and summary dismissal is likely not the better course of action.

We note that if a pro se petitioner has failed to state a factual basis for the alleged grounds for relief,

the trial court may allow an amendment. See Tenn. Code Ann. § 40-30-206(d). Opportunity for the

petitioner, pro se or represented, to affirm under oath would be appropriate. See Evans, No. 03C01-

9601-CR-00018 (The trial court extended opportunity for petitioner to verify amendments under

oath.).

CONCLUSION

We reverse and remand this action to the trial court for further appropriate action.

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JOHN EVERETT WILLIAMS, JUDGE